Florida lawmakers have struck a compromise to rewrite the death penalty law in hopes of avoiding more legal attacks and to allow executions to resume in a state with nearly 400 Death Row inmates.
Under the deal, a Florida jury could no longer recommend a death sentence by a simple majority. At least 10 of 12 jurors would have to agree to impose a death sentence under a plan that surfaced in the House on Wednesday. The proposal requires approval in both chambers and Gov. Rick Scott’s signature.
“The Senate offered that as a solution, and we’re agreeable to that,” said Rep. Charles McBurney, a Jacksonville Republican who brokered the compromise with a fellow ex-prosecutor, Sen. Rob Bradley, R-Fleming Island. “We need to provide a remedy to the court’s ruling.”
Scott has signed more death warrants than has any other governor since the death penalty was reactivated in 1976, but executions have been on hold for more than a month.
Not since 2006, after a botched execution prompted then-Gov. Jeb Bush to suspend the death penalty, has the system been shrouded by so much uncertainty.
The Florida Supreme Court indefinitely delayed one execution and is considering delaying another, and two judges in Tampa Bay have ruled that the state can’t seek the death penalty against two accused murderers.
Those actions followed a decision by the U.S. Supreme Court’s narrow legal review of a Pensacola murder case. The court struck down the death penalty sentencing law because a jury’s role in Florida is advisory and the judge makes all critical findings, which the court said violates the Sixth Amendment right to trial by jury.
The death penalty is still legal in Florida. But in response to the court’s decision, the Legislature went a step further to address its status as an “outlier” — the only state using capital punishment in which as few as seven of 12 jurors can recommend death.
The U.S. Supreme Court did not address that issue in Hurst v. Florida. But other states changed their laws years ago to require unanimous juries in response to a similar decision in Arizona, and legal experts have told the Senate that Florida should follow suit to avoid new constitutional challenges.
Florida prosecutors, families of murder victims and House leaders all wanted as few as nine jurors to be able to recommend death.
Public defenders, death penalty critics and most senators wanted a requirement for unanimous juries, mirroring the law in most states.
The compromise result of 10 jurors is the same sentencing system used by only one other state, Alabama. Delaware, like Florida, allows juries to recommend death by a simple majority, but its system is inactive and under review by the state Supreme Court.
Robert Dunham, director of the Death Penalty Information Center in Washington, said that with the legislative change, Florida would remain an outlier as a so-called 10 to 2 state.
Dunham predicted more legal problems for Florida because of evolving legal standards in which split juries that recommend death sentences are under increasing attack in the courts.
“Compromise is an important element of any legislative solution,” Dunham said. “The problem is that you can’t compromise constitutional protections.”
McBurney disagreed. “Unique is not unconstitutional,” he said in a Herald/Times interview.
Karen Gottlieb, co-director of the Florida Center for Capital Representation at Florida International University’s College of Law, called the Legislature’s compromise “a huge mistake.”
Gottlieb said a 10-2 system will bring more legal battles. “It’s essentially an invitation for death penalty litigation,” she said.
The FIU center recently conducted a statewide poll that showed 73 percent of Florida voters favoring unanimous jury recommendations on death sentences.
Public Defender Rex Dimmig in Polk County called it “illogical” that a jury’s finding of guilt must be unanimous but imposing the ultimate punishment isn’t.
“We have always relied upon citizens to serve as jurors and to render justice, and in all instances we have required them to reach their decision unanimously,” he said. “It is just illogical on this important issue of life imprisonment versus death that we would not trust citizens to do their civic duty.”
On the House floor Wednesday, Rep. Ross Spano, R-Dover, a co-sponsor of the death penalty bill, defended the compromise and noted that one of Florida’s most notorious serial killers, Ted Bundy, was sentenced on a 10-2 recommendation.
“There has to be balance,” Spano said.
Prosecutor Bruce Bartlett, chief assistant state attorney for Pinellas and Pasco counties, said he agreed with the 10-2 scheme, but hopes the Legislature acts quickly.
“It’s starting to cause a lot of problems here,” Bartlett said. “Some of the defense lawyers have demanded speedy trial to try to push it to the wire.”
In Tampa, the Hillsborough public defender is filing notices to preclude use of the death penalty on a case-by-case basis.
In Pinellas, Circuit Judge Michael Andrews ruled last month that the state could not seek the death penalty in the case of Steven Cecil Dykes, a Pinellas Park father accused of killing his infant daughter. Andrews reasoned at the time: “There currently exists no death penalty in the state of Florida in that there is no procedure in place.”
Last week, Andrews rescinded his order after the state challenged his initial decision, and Dykes’ trial is scheduled to begin Feb. 29.
Under the compromise bill (HB 7101) awaiting floor votes in Tallahassee, juries must unanimously agree on a finding of aggravating factors that outweigh mitigating factors to justify a death sentence. The House is expected to pass the bill Thursday and the Senate could vote on it as early as next week.
Prosecutors also must notify defendants within 45 days of all aggravating factors that it intends to prove at trial.
A review by the Florida Supreme Court of all 320 death sentences from 2000 to 2012 found that nearly half of the time —140 cases, or 47 percent — fewer than 10 jurors recommended death. In only one-fifth of the cases, or 60, were jury recommendations unanimous.
Florida leads the nation with 26 cases in which defendants were sentenced to death and later exonerated, a point that Rep. Darryl Rouson, D-St. Petersburg, emphasized Wednesday.
Miami Herald staff writer David Ovalle and Tampa Bay Times staff writer Laura Morel contributed to this report.
Contact Steve Bousquet at firstname.lastname@example.org. Follow @stevebousquet.